Suppose a police officer comes to your home tonight without a warrant and wants you to consent to a search of your residence. If you are like most people, you would say ‘no’: you would assert your Fourth Amendment right to be free from unreasonable searches and seizures. Now suppose the government makes it a crime for you to refuse to consent to the search. That’s what Ohio and several other states have done with DUI laws which criminalize refusing a breath/blood/urine test. Those laws are the subject of cases currently before the United States Supreme Court.
The cases are Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi. In those cases, state laws make it a criminal offense for a motorist arrested for driving under the influence to refuse to consent to a chemical test of the motorist’s blood, breath or urine. Motorists convicted of those laws appealed their convictions to the Supreme Courts of North Dakota and Minnesota, claiming the refusal laws are unconstitutional. In each case, the state supreme court upheld the constitutionality of the law. In each case, the defendant appealed to the United States Supreme Court. The United States Supreme Court held oral arguments for these cases on April 20, 2016.
Ohio has a law similar to the laws which are the subject of the Supreme Court cases. Ohio’s law (R.C. 4511.19[A]) makes it illegal to refuse a breath/blood/urine test for a person who is arrested for operating a vehicle under the influence (OVI) and has a prior OVI conviction within the last 20 years. The punishment for this offense includes a minimum mandatory jail sentence which is double the minimum mandatory jail sentence for OVI. Although Ohio’s law is slightly different –it has the added element of a prior conviction – it has the same unconstitutional flaw as the laws in North Dakota and Minnesota.